NULLITY OF PROCEDURAL ACTS | DEFENDANT WHO DOES NOT UNDERSTAND PORTUGUESE | APPOINTMENT OF SUITABLY QUALIFIED INTERPRETER

 

 

        Coimbra Court of Appeal, proc. 264/06.6JELSB-A.C1, 06.12.2006  

 

JURISDICTION: Criminal

SUBJECT: Nullity of procedural acts

RAPPORTEUR: Brízida Martins

RULING: Dismisses the appeal, on the grounds that the nullity resulting from the lack of an interpreter was argued too late and that the nullity resulting from the lack of a court-appointed lawyer (albeit irremediable) only affected the procedural acts conducted by the Police and not the subsequent judicial interrogation.

DOMESTIC LAW:

Code of Criminal Procedure [Articles 58(1)(c), 64(1)(c), 92, 105, 119(c), 120(3), 122, 141, 174, 177, 196, 255(1)(a), 340, 356, 412]

Portuguese Constitution [Article 32(3)]

Supreme Court Judgment, proc. 42565, 23.04.1992

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Portuguese language; suitably qualified interpreter; Israeli nationality; Hebrew language and alphabet; Israeli citizen; English; translation; interpretation; national language; mother tongue; our language; equitable process

COMMENTS:

  1. This ruling is interesting for the way in which it deals with the consequences of not appointing an interpreter for the validity of procedural acts involving foreigners who do not understand Portuguese. The Court does not seem to be persuaded that the lack of assistance by an interpreter during the first interactions with the police actually injured the defendants‚Äô right of defence and expresses some doubts as to whether the defendants only speak Hebrew as they claim. The description of the facts provided in the judgment (underestimation of the language barriers, use of poor quality translations) gives us some insight into the way Portuguese police and courts act in multilinguistic contexts. The picture is worrisome. Portugal does not stand out, in this respect, from the majority of European States, where the guarantee of a right to linguistic assistance still leaves much to be desired, as became apparent during the preparation of Directive 2010/64/EU of the European Parliament and the Council, of 20 October 2010, on the right to interpretation and translation in criminal proceedings [see PATR√ćCIA JER√ďNIMO, ‚ÄúA Diretiva 2010/64/UE e a garantia de uma assist√™ncia lingu√≠stica de qualidade em processo penal: Implica√ß√Ķes para a ordem jur√≠dica portuguesa‚ÄĚ, in M√°rio Ferreira Monte et al. (eds.), Estudos em Comemora√ß√£o dos 20 Anos da Escola de Direito da Universidade do Minho, Coimbra, Coimbra Editora, 2014, pp. 527-564].

 

  1. In this case, the Police charged two foreigners of Israeli nationality for drug trafficking, imposed them the coercive measure term of identity and residence (TIR) and conducted search and seizure operations on their caravan and automobile. All of these procedural acts were conducted without a defence lawyer and an interpreter to assist the defendants. The TIR was served by using a combination of Portuguese and English, and the search transcripts that the defendants had to sign were drafted in English ‚Äď a ‚Äúvery poor English‚ÄĚ, according to the defendants ‚Äď without translation into Hebrew. In the first judicial interrogation, during which the defendants were assisted by a lawyer and by an interpreter, the Judge confirmed the TIR and decreed the pre-trial detention of the defendants. Before the Court of Appeal, the defendants argued that the procedural acts practiced by the Police were null and requested that the lower court‚Äôs ruling be overturned and that they be immediately released from prison. In its judgment, the Court of Appeal acknowledges that there was a violation of Article 64(1)(c) of the Code of Criminal Procedure (CCP), according to which the assistance by a lawyer is mandatory for all procedural acts whenever the defendant does not understand Portuguese, and also a violation of Article 92(2) CCP, according to which the assistance by a suitably qualified interpreter is mandatory whenever a party to the criminal procedure does not understand or is not proficient in Portuguese, even if the authority presiding over the act or any of the parties to the process knows the language used by that person. The Court also acknowledges that the use of English when serving the TIR and in the searches‚Äô transcripts was in breach of Article 92(1) CCP, which requires the use of Portuguese in all procedural acts, both written and oral, under penalty of nullity. The Court concludes, however, that the nullity of the acts conducted by the Police is irrelevant for the review of the judicial interrogation and of the lower court ruling. The omission to appoint an interpreter and the use of English are dismissed because these type of nullity has to be invoked within a limited time and the defendants missed the deadline for that. As for the lack of a defence lawyer, the Court acknowledges that this is an irremediable nullity ‚Äď for charging the defendants and serving them TIR (not for the search and seizure) ‚Äď, but considers that this nullity does not hinder the subsequent judicial interrogation, during which Articles 64(1)(c) and 92(2) CCP were ‚Äústrictly complied with‚ÄĚ. According to the Court, the ‚Äújudicial interrogation was conducted independently of the circumstance that the defendants had already been questioned by the Police‚ÄĚ, and it could not be said that the Police questioning determined the confession of the facts by both defendants before the Judge, since this was a ‚Äúclearly free confession to which the defendants were in no way bound or obligated‚ÄĚ.

 

  1. The way the Court dismisses the importance of the language barriers and of the absence of an interpreter for the defendants‚Äô right of defence can largely be explained by the legal framework applicable in these cases, which is not very helpful. Although Article 92(2) CCP requires the appointment of a suitably qualified interpreter, the nullity resulting from the omission of such an appointment has to be invoked [Article 120(2)(c)] and this must be done before the end of the procedural act [Article 120(3)(a)]. When we have a foreigner who does not understand or who is not proficient in Portuguese, it is hard to see how we can expect that he or she is capable of arguing the nullity during the procedural act that he/she does not understand, in particular if, as happened in the instant case, the defendant is also not assisted by a defence lawyer. It is precisely because it acknowledges the special vulnerability of defendants who do not understand Portuguese (as of those who are deaf, mute, illiterate, under 21, incapable or with diminished capacity) that the Portuguese legislator ‚Äď in Article 64(1)(c) CCP ‚Äď requires the assistance by a lawyer in any procedural act in which they are involved. The Court seems to show some sensitivity to this, since it admits that the defendants could have made use of the general deadline set in Article 105 CCP, which is of 10 days, instead of waiting for almost a month to invoke the nullity in their appeal against the ruling that decreed the pre-trial detention.

 

  1. The defendants claimed to have absolutely no understanding of Portuguese and to only speak Hebrew. From their appeal, it is clear that what they wanted was to have been assisted by an interpreter qualified to work with Portuguese-Hebrew and to have had access to a translation into Hebrew of the documents that they had to sign. The Police resorted to English, be it for lack of human resources (i.e. impossibility to find an interpreter of Hebrew in time) or because it assumed that the defendants would know English. It is worth noting that the defendants‚Äô claim not to understand English was met with open scepticism by the Public Prosecutor in first instance, as noted in apparent agreement by the Court of Appeal. ‚ÄúAs retorted by the Public Prosecutor in first instance, nowhere in the record is there mention that the defendants only speak Hebrew. And it is odd that they managed to travel to our country only speaking that language‚ÄĚ. The Court admits that the use of English by the Police was in breach of the law, but does it by reference to Article 92(1) CCP, which requires the use of Portuguese in all procedural acts. Left open is the question of whether, in the Court‚Äôs view, the fact that the defendants speak English (as a second language) would make it acceptable to appoint them a Portuguese-English interpreter instead of a Portuguese-Hebrew interpreter, presumably harder to find. Article 92(2) CCP does not explicitly require that the linguistic assistance be rendered in the defendant‚Äôs mother tongue, but only that it is rendered in the language that he or she uses, which can include a foreign language (second language) such as English or the official language of the State of which the foreigner is a national, given the fact that often in African and Asian countries the official State language coexists with a variety of mother tongues. This possibility opened by the phrasing of Article 92(2) must however be used very carefully, so not to hinder the defendant‚Äôs capacity to understand the proceedings. It is necessary that he or she is a highly proficient user of this language (be it a second language or the official language of his/her State of origin) in order to justify the appointment of an interpreter specialised in this language instead of an interpreter specialised in the defendant‚Äôs mother tongue. It is worth noting that Portuguese courts have been taking the view that the linguistic assistance must be rendered in the defendant‚Äôs mother tongue [see e.g. Porto Court of Appeal judgment, proc. 256/16.7PAPVZ-B.P1, 29.03.2017]. In the case under review, it seems that the interpreter assisting the defendants during the judicial interrogation was a Portuguese-Hebrew interpreter, since the Court ‚Äď in its reference to the Public Prosecutor‚Äôs doubts ‚Äď only suggests that it is possible that the defendants‚Äô understand other languages, does not state it as a fact.

 

  1. The Court notes that, during the judicial interrogation, Article 92(2) CCP was ‚Äústrictly complied with‚ÄĚ. We can infer from this that the lower court appointed a ‚Äúsuitably qualified interpreter‚ÄĚ at no cost for the defendants. The Court does not provide any clarifications as to how the interpreter was chosen nor as to how his or her suitability was assessed, which is not surprising since this is a ‚Äúbackstage matter‚ÄĚ, dealt with by the court‚Äôs secretariat. From what is known about the way interpreters are appointed by Portuguese courts, we can say that often the procedure leaves much to be desired, with the appointment of amateurs without the necessary qualifications for the tasks at hand [see PATR√ćCIA JER√ďNIMO, ‚ÄúA Diretiva 2010/64/UE e a garantia de uma assist√™ncia lingu√≠stica de qualidade em processo penal‚Ķ‚ÄĚ, op. cit., pp. 549-550]. We have no way of knowing if that was the case here. The defendants do not seem to be unsatisfied with the interpreter‚Äôs performance during the judicial interrogation, since in their appeal they only complain about the poor quality of the documents translated into English by the Police.

 

  1. One final note to point out that, although the defendants invoked Article 6(3)(c) of the European Convention on Human Rights, to stress the importance of the assistance by an interpreter to ensure that the process is equitable, the Court did not address this issue.

Patrícia Jerónimo

 

REFERENCES IN THE LITERATURE: n.a.

 

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